Ep. 27: Andrea Pelloquin, Part 2: Music Educators Should Not Be Afraid of Copyright

Last week, we talked about copyright as it pertains to composers and arrangers. Today’s focus is going to be on music education and what music educators and their administrators need to know. It’s a big, important, sometimes messy topic, but we’re going to do our best to unpack the basics.

And then in the show notes, we’ve put a compilation of other resources we believe are very helpful. So I’d encourage you to go check those out when you’re done listening. And again, before we get going, a disclaimer that neither Andrea or myself are lawyers.

Any opinions expressed on the podcast are the opinions of Andrea or myself and do not represent any organization or school affiliation. Nothing we say should be taken as legal advice, and we recommend that you always consult a licensed attorney for specific legal advice or questions relating to your individual circumstances. All right.

Well, we’ve already kind of gone there, but let’s shift to the teacher perspective because there’s a lot of people listening that are music educators. And I guess let’s start by bursting everyone’s bubble and talk about fair use. So in the world of music education, when does fair use apply and when does it not? Well, fair use, first of all, it’s a defense.

It is not something that you can just say, hey, it’s fair use. I can use it. No, it’s only really used when someone has infringed copyright.

It’s basically an exception. It’s one of those exceptions. You can say, well, I didn’t infringe it.

It was fair use. So if someone comes up to you and says, you know, you use this incorrectly and gives you a cease and desist, something like that, you can claim fair use. So I’m going to read the direction or read the directions.

I’m going to read the statute right from. So the fair use of a copyrighted work, including such use by reproduction and copies or phono records. There’s that word.

Yes. Or by any other means specified by that section for purposes such as criticism. Now, these are the important words, criticism, news reporting, teaching, including multiple copies for classroom use, scholarship or research is not an infringement of copyright.

And then but basically it is a one person’s opinion on whether or not it fit or not, because that if somebody did, you know, sue someone for infringement and you claim fair use, the person adjudicating the case has to look at four factors to determine if it can fit under that exception. And it really is. It depends.

So you can kind of gauge it. But so the four factors, it’s the purpose and the character of the use, whether or not are you selling this or using it for a nonprofit use? Are you just using it for teaching? Is it a transformative work? That was a big deal in the Andy Warhol case that just went through the Supreme Court. Another whole podcast.

But did you change the work? Like, did you change the reason the work was created? Like it is a whole other thing. But so that purpose and character of the use, are you still using it the way it was intended or are you using it in a different way that totally changes it? The nature of the copyrighted work. So is it a is it something that’s very creative that would weigh more on it’s protected or is it just a set of facts that you’re reproducing that didn’t have a ton of creativity in it that wouldn’t necessarily fall more in fair use? Because copyright was designed to protect people’s creative efforts.

If it’s just a bunch of facts that you’re repurposing into a textbook or something that doesn’t have a ton of creativity, that’s probably weighs more on the fair use side. Am I boring you yet? So is it the kind of thing where you need to satisfy multiple criteria or if you’re just really solid into one, you know, then no, it’s all of them. It’s like you have to look at you have to weigh all of them and decide how far each one falls on the spectrum.

I mean, it’s crazy. The amount used is also another factor in relation to the whole thing. Like if you use a whole piece to illustrate something that could have been illustrated in like three measures, that was that’s probably not fair use then.

You only can use the part that you really need, you know, just use as little as you can to make your point. And then this is a big one. So the effect of the use on the potential market for or value of the copyrighted work.

So if by using it the way you did, nobody wants to buy the original anymore, that’s bad because we want to protect the originals, the original product because somebody created that. And if your use by not getting permission and using it the way you did makes people not want to buy the other one, that’s bad. So that’s not fair use.

But if it’s so different, people still want to buy the other one, then that’s probably more on the fair use side. So it’s just it’s a lot of factors. So just relying on fair use as an excuse to pretty much do anything in education is not necessarily safe.

There’s a lot that goes into it. So yeah. Did I burst everyone’s bubble? I wouldn’t be lying if I were you.

But it is something that can work. So for music teachers, what are sort of the basics they need to know about getting permissions for putting things on YouTube or a live stream or a video? Like teachers are always wanting to do that. How is that? How is what’s the what is the correct way of going about that? Well, it depends.

It depends on how much time you want to spend, how much money you have to spend. And and basically how much you want to do this, because there are services that can do this for you that can take care of all your licensing. There’s one that actually just launched this week called SchoolMusicLicense.com. It’s created by the people that own GIA Music.

So they also own one license. They do this for churches already. So they have they have created a way to help schools license materials like performance licenses, podcasting, streaming.

You can buy a blanket license that covers any of the works produced by the publishers that are part of their program. So it’s not everybody, but it’s a good chunk of them. They’re just getting started and other publishers are signing on.

But SchoolMusicLicense.com, I don’t know all the specifics, but it just launched this week. And I think it’s a really cool concept because I know that they’ve been really successful doing it on the church side. So I’m optimistic that this could be a really cool way for schools to kind of not have to do everything themselves.

So that’s nice. I highly recommend people check it out. Otherwise, if you’ve got time and you want to do this yourself or you’ve got some really motivated students that want to get into this for you.

So what you need to do. So we talked about performing. So if you’re just performing something and it’s in a building and you’re not streaming it, you’re not doing anything, that’s just a performance license.

And like I said, that’s most likely covered by the building that you’re performing in. So that’s fine. But if you’re recording it, you need to get a mechanical license.

And that’s just audio recordings only. And you can get those through HarryFox.com. And Harry Fox is kind of like a marketplace for this. You can just tell them, these are the songs that I’m recording.

This is what I’m going to do with them. I’m going to distribute them. I’m going to sell them.

I’m going to do all this. And they’ll just give you a price. This is my price.

And that would also cover, would that also cover like Spotify and streaming if you got a mechanical license? Yeah, anything that’s audio. So they will give you a license to make audio things. And you have to tell them what you’re going to do with it.

And then they’ll figure out what your price is because mechanicals are, I believe the rate currently is 12 cents a song because it just went up, which is cool. So now creators get more when you do this, when you license the song. It’s a statutory rate.

So it doesn’t change unless the government decides it does. But it just went up finally after a really long time. But that’s for recording and audio recording.

If you want to make a video, which most people do these days, they just want to make a video and stream it on YouTube, et cetera. That’s more complicated because you need two licenses. You need a performance license, which because anything is, if it’s a live stream, that’s considered a performance.

So because it’s happening and you’re displaying it to people, so you’re performing it for people. So performance licenses are generally covered by YouTube and Facebook, the bigger ones. They’ve got blanket licenses set up with most publishers, big publishers.

They’ve already got that covered. So you’re probably OK with a performance license. Now, that’s that’s still probably with an asterisk.

Are you talking about the thing where you upload a YouTube video and they do their little copyright check and they say, you know, they say basically the copyright holder has allowed this to be put online. Is that what you’re talking about? So if you do that and YouTube says we’re claiming it, then you’re in the clear. Well, for that part, the other half of it is the video sync license, because you need a license to make that video to begin with before you even put it anywhere.

So so if you’re using somebody’s copyrighted work and making a video, you know, with picture and sound. So I think it’s a synchronization license, which basically combines audio and sound. All right.

That’s the same thing. Combines video and audio into one product. So that you have to get directly from the copyright holder.

There’s no marketplace or so for that. So that comes right from the copyright holder and they can set those terms. It’s not a statutory requirement.

So they can say, sure, we’ll grant you a license to make this video. Here are terms that some of them might say, I just go ahead. Some of them may say, oh, it’s going to cost you this much.

It really depends per copyright holder. And so that gets tricky because for, say, teachers who want to film their whole concert and stream it and make a recording of it later, because generally if you stream something onto YouTube or on Facebook, it does make a recording. So that’s that whole separate side.

The streaming part, if it’s just a live stream and it doesn’t make a recording to be saved anywhere, that’s just a performance license. But most of these platforms will record and just leave it there for people to see later. Right.

So that’s where you need to have the video sync license. And so you have to look at all the songs on your concert and decide who owns those copyrights. And you have to get permission from every single one.

That’s the tricky part. And that’s where places like the school music license, they will go through and figure out who all those people are and they’ll get the permission and then we’re good. But if you want to do it yourself, you can.

And most of the publishers have a spot on their website where it says licensing. And you go on and you pick the license you want to do and you tell them what you’re doing and you submit it. And then they get back with you and they tell you their terms.

And if you pick a lot of songs from the same publisher, that’s a lot easier because then you only need to request one for all the songs. But, you know, it depends. So but that’s the part that is really tricky.

And I would love it if copyright law could be changed to make that a little easier for people. But in the meantime, these services that are out there, I think Easy Song is another one. Easy Song licensing.

I used to do a presentation about this and I can’t remember the other one. There’s other ones out there like some that you can create a school TV channel where you can just stream everything onto this channel. And it’s it’s covered as long as it stays on this channel and you give your subscribe and people subscribe to it.

It’s a really cool thing. I can send you the link to whatever. I can’t remember what it’s called, but I can send you the link to put in the show notes.

It’s it’s a really neat other option where you can sell subscriptions to your channel. And that’s how the service gets paid, where it’s free to create the channel for the school. But it’s the subscriptions that the parents pay, which isn’t much.

It’s just a little bit, but it adds up. So there’s ways to do this. But if you’re going old school, you’ve got to do it individually.

And so let’s see. Filming a video and live stream. Yeah, we talked about that.

And then here’s the other the other clinker. If you are somebody that’s using a performance track like these performance accompaniment tracks that you get for your choral pieces or for whatever. If you’re using an underlying recording, you need to have a master recording license to use that in your recording.

To make a recording of that sound underlying your performance. And that also comes from the owner of that track. So see, for instance, a publisher.

A publisher creates a track to go along with their choral, their choral piece. You would need a sync license to record the choral piece. And then you would also need a license from that same publisher because they created the track to include that track in the video.

So it’s just, you know, the licenses keep adding up. But if you contact the publisher, they’ll walk you through it. They do this all the time.

And a lot of them have really good websites that will walk you through the frequently asked questions. What kind of license do I need? Help me out. Because they deal with this.

This is what they do. So when a teacher sends that email, I can hear everybody’s eyes kind of rolling back into their head and just being overwhelmed. That’s usually what happens when I talk about this.

But if anyone’s hung with us and they’re still listening. Yeah, please stay with us. No, but if you’re a teacher and you’re sending that email to the publisher, what do you need to say? Usually there’s a form that you fill out that has all the right information on it.

And because they know you’re not going to otherwise you’re not going to. Well, if it’s not a form, if it’s like a smaller publisher and they just have a contact us sheet with a big blank box, you basically just tell them what you’re doing. Say I’m using this song in this performance on this date for this many people ish, you know, in this venue.

I’d like to get a license to do this. And then someone’s going to have to get back to you and tell you, you know, ask you more questions or just kind of figure out what they need to know to get to get the right license for you. It’s a longer process if there is no form, because there’s a lot of back and forth before while they find out the right details.

But most publishers will have a form now. They figured out that that back and forth can take a while, especially with teachers that are not generally super available during the day to take phone calls. So most of them will have a form so that you can submit all the right information, but you will need to know probably the publisher ID of the song, the name of the song, the arranger, you know, their product number.

And you’ll need to have the date of your performance, possibly how many people can your auditorium hold like or what are you going to make a recording of what are you going to do with it depends on what license you’re asking for. And if you’re asking for a video sync license, they may want to know where you’re going to put it. Then again, they might not.

I mean, it really depends on the publisher and what they need to know for their terms. Clear as mud. Well, I think just the point that I wanted to make is that it sounds overwhelming to have to contact so many people.

And it is overwhelming, but they are all going to want the same information. So if you have that pre-written out, you know, I’m such and such a high school and, you know, there’s 10 kids in my choir and we’re doing blah, blah, blah. I mean, you could pretty much copy paste that to all of these, you know, email submissions that you have to do.

And so if you do a little bit of prep work beforehand, that can save some of the nightmare. You know, and it just it all comes to you got to be organized. You got to do this ahead of time.

You have to give plenty of time because publishers, they get so many of these requests. I mean, it may take several weeks or months to get a response on this. And just because you don’t get a response doesn’t mean you can just do it.

You need to get a response. If you don’t get a response, you just shouldn’t use that song. Honestly, because you don’t have permission unless you get a response.

So I do think there is there is an attitude among a lot of music educators that, you know, it’s easier to ask for forgiveness than permission. Yeah, I’ve heard that. And I can tell what you’re about to say from that laugh.

But why don’t you go ahead and say it anyway? It’s not right. You got to have the permission and asking for forgiveness. You might be asking for forgiveness for a great deal of infringement thing.

I mean, if a school if you are caught, especially if you use these pieces or do a recording of a competition or something that’s that’s very publicly visible and you don’t have the permission to make the arrangement or to do the recordings and and whatnot. And the publisher hears about this, they will get in touch with you and you could get in a lot of trouble. Your school.

Number one, your school will get sued. You might get sued. In addition to the school being sued, you if you don’t get sued, you could lose your job because the school, the school got sued.

I mean, there’s so many things. Your reputation, everything is at risk. So why risk it? Just get the permission, plan ahead, be responsible and get what you need.

Sorry, I’m preaching. But in the end, it’s about putting money where, you know, giving money to the creators who make this music, who put it in your hands like these people make their lives this way and they deserve to be compensated. So.

I agree with everything you just said, but I also think that teachers should not be expected to do all of this on their own, because as you say, the school is also at risk. I hate saying that, but the school is also at risk. But so that means the school should also be supporting you as an educator.

You know, you have you have probably there’s probably at least one lawyer somewhere in the district. You know, you probably have, if not a performing arts secretary, but some kind of administrative staff that could maybe help you with this. You know, the school needs to be providing adequate funding for you to do all of these licenses that needs to be part of the process.

And so what have you seen educators do that’s worked to get their administration on board with all of this? Yeah, I mean, I get what you’re saying. It’s about awareness. And unfortunately, with with administrators, they have so much to think about.

Copyright compliance is sometimes at the bottom of the list because it’s it all comes down to a risk factor. You know, how much of a risk is it where I have these huge other things over here that have much more risk versus copyright? Where’s my risk? So but really, it should be right in there, because if you I mean, sure, suing a school is not the best PR thing for a publisher. However, if they do it, it could be big and you just don’t want to take that risk.

So you need to educate your administrators about copyright law. And a lot of them, you know, they don’t get necessarily school. They don’t get this in their administrator courses.

We don’t get it. How do we get it? Teachers don’t know about it. And if teachers don’t know about it, how are their administrators going to know about it? So everyone just needs to be more aware of this and the importance and the importance of it and the process.

So if you go to your administrator and say, this is the law, this is what I need to do to be compliant with the law. I need to go through all this stuff and I need help. And I know if I don’t do this, we are going to be at risk for some potential lawsuits or, you know, settlements.

Most of these lawsuits settle before they go to court. But still, there’s money involved and reputations and all kinds of things. So schools really don’t want to take that risk.

So they need to, like you said, they need to put up the money to support these teachers. Find a parent. Maybe there’s a parent.

Maybe there’s one of the parents that’s a lawyer and they want to do some pro bono work for you and take care of all this. Maybe you find a student that wants to learn how to do all this. They’re really interested in music business and they want to do that if you’re a high school student, perhaps.

You know, they want to do some of the research for you. A lot of this can be done by a student who knows what they’re doing. You can train them.

So there’s really different ways to do this, but it’s important that it gets done. And if your school has the money for one of those services that will just do it for you, more power to you because that just makes it easier. But you can do it yourself.

It just takes more time and more organization. But it is important and it just comes down to awareness. That’s it.

And you’re right. We have a problem because there isn’t any. Or it’s low.

So it’s things like this, like your podcast and getting the word out like this. It’s just really important. So if I’m a teacher listening to this right now and I’m still confused, where do I go? Where do I go to learn about where do I go to learn more about it? OK, there are awesome, awesome websites out there, and I’m going to share a few of them that I really like.

And we’ll put them in the show notes as well. Great. Yes.

And I will send these over to you. So the Music Publishers Association, MPA.org, has a ton of information on there about making arrangements and how to do licenses for arrangements. There’s a bunch of information for teachers on just how to mail.

They’re all about arranging on the MPA website. There’s one for how to make a choral arrangement, how to make a band arrangement and how to get the proper licensing. There is also a really cool educational program on there.

If you want to teach your students about copyright or perhaps train your administrators, there is a presentation. And I’ve used this presentation before, too, especially when talking to college students. This is a great one.

They give you the PowerPoint slides, the notes, like everything. You just read it and it’s got a fantastic handout that goes with it. There’s also a really cool link to a website called I Made It.org, which contains some really cool videos to show kids about why it’s important to compensate creators for their work.

It’s a real basic kind of thing, but it gets that into kids’ minds when they’re little, which is kind of fun. All right. That’s MPA.org. Copyright.gov. Believe it or not, it’s a government website, but it has a ton of information.

Because the Copyright Office knows that people need to have this information given to them in ways that they can understand or they’re not going to comply. So they’ve made it really easy to understand. And there’s information there for all the different genres of creators.

So music, video, photographers, artists, all this different kind of stuff. So the other one, Copyright Alliance, has a lot of information for creators on how to protect your rights and how to do various things. There’s a lot of information on the small claims court that I talked about.

So that’s CopyrightAlliance.org. NAFME.org has a huge section on copyright for teachers. So that’s another great one. And the National Federation of State High School Associations.

I discovered this one a couple years ago. NFHS.org. They have a really cool copyright compliance course that administrators and teachers can take to say that they are copyright compliant and they are aware of the rules. Now, that’s actually something to do with remedies.

Like if you are aware of the rules, you are at risk for greater fines. So everyone watching or listening to this right now is now aware of the rules and you can’t pretend you don’t know how to do anything anymore. But there is a smaller fine if you can prove that you had no idea what you’re doing and you had no idea you were breaking the law.

They don’t charge you as much. So there is some. But I shouldn’t have probably mentioned that because now everyone’s aware.

So those are the ones that I really like. There’s a ton of information out there. If you just Google copyright, copyright for music, music copyright, there’s tons of videos of people talking about this.

OK, a question for you. When we talk about, quote unquote, copyright law, where is that? What what is the actual laws that we are talking about? Well, if you know copyright, the copyright clause is from the Constitution, believe it or not. The founders of our country wanted creative works saved.

It’s from Article One, Clause eight of the Constitution. So check that out sometime. But the copyright law itself is in, I believe it is it’s 17 USC.

It’s in the U.S. Code 17 USC. And then there are various sections. So if you go to copyright.gov, there’s a whole section on copyright on the actual law and you can read it.

You can print it. And it’s just very exciting for copyright nerds. But it’s all in there.

So that’s that’s where I would go. They have really cool circulars, too, that actually are just like one pagers on specific issues, which is really helpful. So do we cover all your questions? I think we did.

Is there anything is there anything you wanted to mention that we haven’t that I haven’t asked? No. I do want to put in a plug for my law school. I’m very excited for it.

If people are interested in being a copyright lawyer, like I said, my law school, University of New Hampshire, Franklin Pierce School of Law is one of the top 10 schools in the country for intellectual property. So and we do have a hybrid program, which is what I’m in. And it’s really a great way for people to become a lawyer while still working a day job.

So it’s really it’s affordable and it’s it’s really a great program. So I highly recommend checking it out. So how can composers or arrangers find a lawyer who can help them that knows their stuff when it comes to sheet music? Such a good question.

Such a good question. I mean, you could Google copyright lawyers in your area and just see you could talk to you could call one of these organizations. They have directories of lawyers and they’re happy to help you find one.

If you know if you are in a situation where you don’t have a ton of money for an attorney, but you need some guidance. A lot of universities offer pro bono clinics where law students will work with you under the guidance of an attorney and help you for free. But you have to meet certain income requirements.

I was actually a student attorney in ours this summer and got to help some real live people with copyright and trademark questions. So there’s a lot of a lot of ways to do this. And I think on the copyright website, there might even be a directory of how to find an attorney.

I know the CCB website, the Small Claims Court, has a referral kind of tab where if you need an attorney, you can go on there. But that’s just for copyright in general. So you want to find someone who knows about music.

But I would say start start Googling in your area and ask people. Word of mouth is huge. So, yeah.

Well, let’s end with this. Why should people not be afraid of copyright? Because I think the prevailing emotion when it comes to this stuff is it’s so confusing and it’s so overwhelming. And teachers have so much on their plates already and composers have so much on their plates.

And it’s just like we’re afraid of things we don’t understand. Just as humans, that’s kind of the default reaction is if we don’t understand something, if it’s confusing, if it’s overwhelming, we’re just afraid to go there. So why should musicians not be afraid of copyright? Well, musicians specifically, do you want to get paid? You should want to get paid.

And you should learn about your rights. You should learn about all of your bundle of sticks that you actually have. You may not even realize that you have.

You have more power than you think. And you should learn about it and educate yourself and educate your clients and your teachers and your customers. For teachers and people on the other end, the users of creative product, you should learn about it, too.

Don’t ignore it. Don’t put your head in the sand. Because it is the law.

And it is going to come back to bite you eventually. It really can be easy to do once you try it. It’s just like anything.

The first time you try it, it’s a little tricky. And you might run into some walls. And you might make some mistakes.

But every time you do it afterwards, it gets a little easier. There are resources out there to help you. And we’re going to list a bunch of them here.

Take the time to do it. Take the time to educate yourself and your students. If we start doing this early, kids will just keep paying it forward then.

And all the creators, everyone will get paid. And they will keep creating. And that’s the whole point of copyright laws, to keep innovating and keep bringing new works into the marketplace for people to use.

And people will only do that if there’s a reason to, if there’s an incentive to keep doing it. You guys don’t make arrangements just for the fun of it. I mean, you might.

But that can’t be your job then. So, that’s my soapbox. Copyright is important because we want to keep our country creative.

Otherwise, we’re just going to turn into a bunch of robots doing the same thing over and over and over. And don’t get me started on AI and copyright. Whole other thing.

But, yeah. There you go. Well, thank you.

I really appreciate you taking the time. This was super fun to dig through. And really important stuff as well.

So, I really appreciate it. Thank you for the opportunity. This was really fun.

As you can tell, I’m a little passionate about this subject. So, yeah. I’m happy to help.